Ashmi Investment Limited v Riakina Limited & another
The bottom line
#Choosing review over appeal means you cannot later appeal the judgment, Supreme Court rules.
What this practically means
#A company tried to appeal a Court of Appeal decision, but the Supreme Court struck out the case. The company had first asked the Court of Appeal to review its judgment, but that request was denied. Then the company tried to appeal the original judgment. The Supreme Court said that once you choose to seek a review, you cannot later appeal the same decision. Also, the company's notice of appeal only mentioned the review ruling, not the original judgment. So the Supreme Court had no power to hear the appeal. The case was thrown out, and the company got its security deposit back.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant was a bona fide owner of the suit properties within the provisions of article 40 of the Constitution; and
- 2.Whether the Court of Appeal misapplied the doctrine of lis pendens thereby denying the applicant a right to property.
Key legal issues
#Whether the Supreme Court had jurisdiction to hear an appeal against a ruling on review when the Notice of Appeal only referred to that ruling, but the petition challenged the substantive judgment.
The court lacked jurisdiction because the Notice of Appeal was limited to the ruling on review, and the appellant could not merge the two decisions.
The appellant filed a Notice of Appeal against the Court of Appeal's ruling of 14 April 2023 dismissing its review application. However, the petition of appeal focused on the merits of the Court of Appeal's judgment of 19 November 2021, which was the subject of the review. No Notice of Appeal had been filed against that judgment. The Supreme Court held that the Notice of Appeal defines the scope of the appeal, and the appellant could not challenge the substantive judgment through an appeal against the review ruling. The court relied on its precedent in University of Eldoret & another v Hosea Sitienei & 3 others, which held that a litigant who chooses review cannot later appeal the judgment.
Whether the appellant could pursue an appeal against the Court of Appeal judgment after unsuccessfully seeking review of that judgment.
No. Once a litigant chooses to seek review, that option is exhausted and they cannot later appeal the judgment.
The court applied the principle from University of Eldoret & another v Hosea Sitienei & 3 others that a litigant with multiple options must choose one and cannot revert to another if the first fails. Allowing otherwise would protract litigation and defeat finality.
Legal principles established
#- A litigant with multiple legal options must choose one and cannot switch to another if the first fails.
- A notice of appeal is required to start an appeal and must clearly state which decision is being appealed.
- Once a party chooses to seek review of a judgment, they cannot later appeal that same judgment.
- Courts will not allow a party to protract litigation by taking inconsistent procedural steps.
Court orders
#- 1.The Petition of Appeal dated 4 May 2023 and filed on 19 May 2023 fails and is hereby struck out for want of jurisdiction;
- 2.We hereby direct that the sum of Kshs 6,000 deposited as security for costs in the appeal herein be refunded to the appellant; and
- 3.There shall be no order as to costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal at Nairobi
- Civil Appeal No. 384 of 2019
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Setting aside the judgment and order of the Court of Appeal dated 19 November 2021, the Ruling and Order of the Court of Appeal dated 14 April 2023, and the Judgment and Order of Honourable Justice K Bor dated 25 September 2017
The court lacked jurisdiction because the appeal was against the ruling on review, not the substantive judgment, and the appellant improperly merged the two decisions.
Permanent injunction restraining the 1st respondent from interfering with the appellant's possession of the suit properties
The appeal was struck out for want of jurisdiction, so no substantive relief could be granted.
Costs
There shall be no order as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Petition of Appeal dated 4 May 2023 and filed on 19 May 2023 fails and is hereby struck out for want of jurisdiction;
We hereby direct that the sum of Kshs 6,000 deposited as security for costs in the appeal herein be refunded to the appellant; and
There shall be no order as to costs.
the focus of the appeal as presented is incongruent with the expectation accruing from the Notice of Appeal dated April 28, 2023. In the premises, we have no jurisdiction to entertain the same and it should be struck out.
where a litigant has more than one option to pursue, he/ she must settle on one of them. The decision on which course to pursue is taken in advance and once it is taken, the other option is no longer available or placed in abeyance to be reverted to at a later stage in the event the initial option does not succeed.
Key timeline
#Practical implications
#Choose review or appeal wisely
This case confirms that a litigant cannot pursue both review and appeal of the same judgment. Once you choose review, you cannot later appeal. Also, the notice of appeal must specifically identify the decision being challenged. Lawyers should ensure clients understand this election and draft notices of appeal precisely to avoid jurisdictional issues.
Procedural choices have consequences
Businesses must understand that seeking a review of a court decision is a final choice; you cannot later appeal if the review fails. Also, the notice of appeal must clearly state which decision you are challenging. To avoid losing your case on technical grounds, consult your lawyer early on the best option.
Pick one legal option
If you lose in court, you may have the choice to appeal or ask for a review. But you must pick one. This case shows that if you choose review and it fails, you cannot then appeal. Also, your notice of appeal must clearly say which decision you are challenging. Get legal advice early.
Frequently asked questions
#Can I appeal a Kenyan court judgment after a failed review application?+
No. The Supreme Court in Ashmi Investment v Kenya Airports Authority ruled that once you choose to seek review, you cannot later appeal the same judgment. You must decide between review and appeal at the outset.
What is a notice of appeal and why is it important in Kenya?+
A notice of appeal is a document that starts an appeal and defines which decision you are challenging. In Kenya, it is a jurisdictional requirement. If your notice does not cover the decision you want to appeal, the court may strike out your case.
Why did the Supreme Court strike out the appeal in Ashmi Investment v Kenya Airports Authority?+
The Supreme Court struck out the appeal because the appellant's notice of appeal only challenged a review ruling, but the petition attacked the original judgment. Also, the appellant had chosen review and could not later appeal.
What is the principle of election between review and appeal in Kenya?+
The principle is that a litigant with multiple options must choose one. If you choose to seek review of a judgment, you cannot later appeal it. This ensures finality in litigation and prevents abuse of process.
Later judgments citing this (5)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Cove Investment Limited v Rono & another (Suing as the Legal Representatives of the Estate of Mathias Kimnyole Langat) & 2 others[2026] KESC 24 (KLR)20 Feb 2026
- Wilfred Waweru Karinga v Lenny Kanini Kamau [2021] KEELC 2280 (KLR)[2021] KEELC 2280 (KLR)29 Jul 2021followed
- Lessan Hardware Ltd v Settlement Fund Trustee & 2 others [2021] KEELC 4264 (KLR)[2021] KEELC 4264 (KLR)11 Feb 2021
- Jacquiline Muthoni Wachira v Mwalimu Investment Company Limited & 3 others [2020] KEELC 312 (KLR)[2020] KEELC 312 (KLR)10 Dec 2020applied
- Teresiah Njeri Mwangi & another v Rosaline Kamunyu & 2 others [2019] KEELC 1789 (KLR)[2019] KEELC 1789 (KLR)12 Sept 2019applied
Cite this brief
#Cite this brief
Caselaw, "Ashmi Investment Limited v Riakina Limited & another", Case Analysis (2024). Petition E014 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/30/eng@2024-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.